Thayer v. McGee

• Decision Date: 19 April 1870
• Citation: 20 Mich. 195
• Court: Michigan Supreme Court
• Parties: Charles Thayer v. Melville McGee, et al

20 Mich. 195

Charles Thayer v. Melville McGee, et al

Supreme Court of Michigan

April 19, 1870

Heard April 7, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Jackson Circuit.

This was an action of ejectment brought by Charles Thayer, to recover the southwest quarter of what was formerly known as the public square, in the city of Jackson.

The imperfection of the record brought up by the writ of error,--the character and extent of which appear from the opinion of the Court,--makes a full statement of the facts in controversy, on which the errors of the Court below are assigned, impossible.

Judgment affirmed with costs.

M. McKernon, for Plaintiff in error.

I. The Court below clearly erred in admitting the supposed stipulation in evidence and allowing the same to be read to the jury. 1. This paper or writing never was signed by the plaintiff, or his Attorney or Solicitor, and consequently is not now, nor ever was, binding on him. Circuit Court Rule 12. Chancery Court Rule 84. 2. But even independent of the rules of Court it could not be used against him (under any circumstances) in any case except the one in which it is entitled, (and it is even doubtful if it could in that one) and then only when signed by the party or his Attorney.--1 Cow. & Hill's Notes to Phil. Ev. Note 182; Brown v. Munger, 16 Vt. 12; Brittingham v. Stevens, 1 Hall, N. Y., 379; Harrison's Devisees v. Baker, 5 Litt. 250. 3. Again, it could not be properly admitted in any case (even the one in which it is entitled) without other evidence connecting the plaintiff with it, which was not even offered in this case. 4. It may be claimed that this is only a trivial and not a vital error, but it becomes one of vital importance, since it is impossible to ascertain how far it influenced the verdict of the jury. 5. Again, it may be said that this supposed stipulation is mentioned in the decree or orders in the Chancery case, and hence admissible. To this we reply that if any stipulation appears or is mentioned in any such orders or decrees, there is no evidence showing that it is this pretended one adduced on the trial of this cause.

II. There was manifest error in admitting the deed of Packard, Cooper, Van Dorn and Moody in evidence.

It was a deed between other parties and has no connection whatever with the plaintiff and defendants in this action. As all the title the grantors had to the premises was cut off by foreclosure of the mortgage, it is plain this deed was utterly worthless as a muniment or evidence of title.

III. The Court below erred in admitting the quit claim deed of the plaintiff in error, in evidence on behalf of the defendants in error.

1. The above deed is void on its face. It purports to be a deed of bargain and sale between an individual and the Board of Supervisors of Jackson County, for a consideration, but without defining the subject and use for which the land is to be used or appropriated. We claim the Supervisors (as such) had no power or authority to buy unless there was some special legislation authorizing them to do so.--Rev. Stat. 1838; pages 39 & 40; Laws of 1842, page 22. 2. Again, if the Supervisors had power to buy without authority of law, they could, on behalf of the County, buy any or all the real estate in it, and run the County in debt for the payment, and raise a tax as well upon personal as real property to pay for it, and become general dealers in goods, wares and merchandise.

IV. The Court below erred in charging the jury that the quit claim deed given by the plaintiff was a bar to this action.

1. The covenants contained in the deed do not bind or run with the land, and the only remedy of the defendants (if any) is by an action for the breach of such covenants. --Collins v. Plummer, 1 P. Wm's., 104; 1 Shep. Touch., 164, [Ed. of 1808]. 2. The deed in question is void from the fact that if it conveys anything, it only conveys a bare possibility of an interest which is uncertain and not grantable.--1 Shep. Touch. 239. [Ed. of 1808]. 3. Again it is void because it is evident that it purports to convey an interest (if there was any) that was wholly in suspense, and therefore was not grantable. 4. So this deed was and is absolutely void, since the plaintiff not being in possession nor having a right to the possession of the premises in question, he could not make a valid conveyance of the same.--1 Shep. Touch., 243, [Ed. of 1808]. 5. The only way in which this deed could convey any title to the premises, would be by coupling it with a conveyance or assignment of the mortgage debt or a portion of the same provided it could be apportioned. Otherwise it can convey nothing.-- Furbush v. Goodwin, 5 Foster [N. H.] 425; Ellison v. Daniels, 11 N. H., 274; Aymar v. Bill, 5 John. Ch., 570; Lamprey v. Nudd, 9 Foster, [N. H.] 299; Weeks v. Eaton, 15 N. H., 145; Hobson v. Roles, 20 N. H., 41; Huntington v. Smith, 4 Conn. 235; Blair v. Bass, 4 Blackf. 539; Martin v. McReynolds, 6 Mich. 70. 6. It may be urged that as the plaintiff subsequently acquired the title to the premises in question by virtue of the decree and Master's deed, such title should accrue to his grantees and those claiming under them. But we submit that such can only be the case where the conveyance is made by a deed containing a covenant of warranty.--Somes v. Skinner, 3 Pick. 60; White v. Patten, 24 Pick. 324.

W. K. Gibson and Johnson & Higby, for defendants in error.

Whatever right the plaintiff in error has to the premises in question, is derived solely through the foreclosure of the mortgage from Moody to Van Dorn, and the Master's deed upon the sale of the mortgaged premises.

I. At the time of the execution and delivery of the quit claim deed from plaintiff in error to the county of Jackson, the common law doctrine respecting the rights of mortgagor and mortgagee prevailed in this State. Stevens v. Brown, Wal. Ch., 41; Mundy v. Monroe, 1 Mich. 68; Crippin v. Morrison, 13 Mich. 23; Comp. Laws, Sec. 5614.

II. The quit claim deed of plaintiff in error was operative, either as a release of so much of the mortgaged premises as the deed contained, or was an assignment of the mortgage pro tanto; and whether a release or an assignment, depends upon the intention and object to be accomplished. 1 Washburn on Real Estate, 520; Jerome v. Seymour, Har. Ch., 357; Hunt v. Hunt, 14 Pick. 374-380; Freeman v. McGraw, 15 Pick. 82; Murdock v. Chapman, 9 Grey 157; Russell v. Coffin, 8 Pick. 143; Ruggles v. Boston, 13 Grey 506.

III. That such deed was intended by plaintiff in error as a release, is clearly shown by the following facts:

1. It was given, during foreclosure of the premises in question, by Thayer, the complainant, to the county of Jackson defendant, and was recorded the same day on which a stipulation was made in the cause between the parties to the deed, in which stipulation the object and intent of the deed is defined.

2. Thayer not only treated such deed as a release in the order pro confesso entered in said cause, but also in the decree and Master's deed, by adopting a different description of the premises from that in the mortgage, and consistent with the idea of a previous release by him.

IV. Thayer's deed should receive a construction consistent with the intent and design of the grantor, especially where a different construction would aid in the perpetration of a fraud. 14 Pick. 374; Proctor v. Thrall, 22, 262; 1 Green Ch., 145.

V. In construing deeds and other instruments, the situation of the parties, the subject matter of the transaction, and the attending circumstances, are all proper matters to be considered by the court, since the object is to carry into effect the intention of the parties.--Paddock v. Pardee, 1 Mich. 421; Adams v. Frothingham, 3 Mass. 352. The same rule of construction is applicable to the decree and Master's deed.

VI. The term "Block" has not a strict legal signification. It is not used in the statute, nor are blocks required to be designated on town plats.--1 Vol. Com. Laws, Sec. 1133.

VII. Such being the case, the Court will go outside the deed to determine the true meaning and construction of the language used.--1 New York, [Comstock], 96; 1 Johnson's Cases, 91 399; 8 Mass. Rep., 214.

VIII. The Court properly charged the jury that the plaintiff in error would be estopped, in this particular case, by his quit claim deed. The question in this case is not whether a quit claim deed estops the grantor from setting up a subsequently acquired title of a different character, or from a different source, but whether the plaintiff in error, having undertaken to release by quit claim deed the premises in question, pending foreclosure, to a party defendant thereto, and having thereby induced such defendant to retire from the case and withhold his defense, can now set up against such defendant a title acquired solely through such foreclosure.

IX. The quit claim deed was given as a release of the mortgaged premises, and by both parties to it in a contemporaneous stipulation, solemnly affirmed to be a release, coupled also, with a promise of the grantor not to take a decree against the released premises, acted upon as a release in the order pro confesso, and it would violate the plainest rules of law to allow the grantor now to deny either the intent or the effect of such deed in a suit against the grantee.--8 Wend. 483; 5 New Hamp., 453; 4 Sandford, 361; 28 Me. 525; 20 Conn. 563.

X. A grantor and his heirs are estopped by the grantor's deed conveying land bounded on the streets to deny that there are streets to the extent of the land bounded thereby.--17 Mass. 413; 2 Grey 271.

XI. The statute of 1827, chapter 2d, sections 3 and 4, and subsequent statutes, confer all necessary...